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THE ELECTORAL VOTE-BY WHOM COUNTED. 


LETTER OF 

RICHARD S. SPOFFORD, OF REWBURYPORT, MASS., 


Hon. WILLIAM W. EATON 




Of the U S. Senate, 


UPON THE SUBJECT. !! 


“When winds arise, worship the echo.”— Pythagoras, 



Washington, D. C., January 10, 1877. 
Hon. William W. Eaton: 

My dear Sir : Having been requested by you to commit 
to writing the views recently expressed by me in a conver¬ 
sation touching the electoral vote and the manner in which 
it is counted, I submit the following considerations, by which 
the position upheld by me on that occasion is sustained. 

I am well aware, of course, that these considerations de¬ 
rive no weight from my mere personal authority; but if, as 
I believe I am able to do, I shall show that my conclusion is 
the true one, it is immaterial from what source they ema¬ 
nate, for then they will obtain audience not as the utter¬ 
ance of an individual, but of the Constitution itself. Nor 
does it matter at all in this view that the conclusion arrived 
at is entirely different from those hitherto advanced by emi¬ 
nent partisans on their respective sides. 

First of all, I observe that in my view of the subject there 
is neither a casus omissus in the Constitution, nor, when 
the same are properly interpreted, any vagueness or uncer¬ 
tainty in its provisions. Indeed, to assume the fact to be 
otherwise, is to ascribe to the framers of the Constitution a 
want of foresight and intelligence utterly inconsistent with 






• 2 

their recognized character for statesmanship and for pre¬ 
science in public affairs. Least of all, is it to be supposed 
that in a matter of so great importance as the verification 
of the electoral vote for the President and Vice-President 
anything would have been left by them to chance or infer¬ 
ence, or to the hazards of political caprice, knowing as we do 
that over no feature of the Government did they deliberate 
with greater solicitude and circumspection. 

To pretermit this inquiry, however, the question is, by 
whom, in the intendment of the Constitution, are the elec¬ 
toral votes for the President and Vice-President to be 
counted ? 

The sole provisions of the Constitution bearing upon this 
inquiry are found in Article XII of the amendments, in the 
following words : 

^‘The President of the Senate shall, in the presence of 
the Senate and House of Representatives, open all the cer¬ 
tificates, and the votes shall then be counted ; the person 
having the greatest number of votes for President shall be 
the President, if such number be a majority of the whole 
number of electors appointed ; and if no person have such 
majority, then, from the persons having the highest num¬ 
bers, not exceeding three, on the list of those voted for as 
President, the House of Representatives shall choose imme¬ 
diately, by ballot, the President. * * * person 

having the greatest number of votes as Vice-President shall 
be the Vice-President, if such number be a majority of the 
whole number of electors appointed ; and if no person have 
a majority, then from the two highest numbers on the list 
the Senate shall choose the Vice-President.” 

To deal, first, with the function of the President of the 
Senate: It is obvious that the sole duty imposed upon 
him by the letter of the Constitution is ‘Go open all the 
certificates,” and that if he has any other power beyond 
this simple ministerial one, it is derived by implication, and 
not by express grant, that implication springing, if any¬ 
where, (for it can spring nowhere else,) from the words in 
immediate context with those just quoted, viz, “and the 
votes shall then be counted.” 




3 


Not even by inference, it seems to me, does the President 
of the' Senate obtain any official authority here. Having 
his function confined to the opening of the certificates by 
words of express limitation, every canon of interpretation 
requires that he shall not transcend the limits of his defined 
authority to exercise anotlier function of an undefined and 
independent character. Indeed, the opposite is the true and 
irresistible conclusion, viz, that, having opened all the cer¬ 
tificates, his constitutional part has been fully performed, 
and he is, in this respect, functus officio. 

Nor does the reason of the case fail to accord with this 
inevitable construction. 

Otherwheres, in the Constitution, it is provided that the 
electors, in tlieir respective States, shall make lists of the 
persons voted for for President and Vice-President, and 
these lists they are charged “to sign and certify and trans¬ 
mit sealed to the Seat of the Government of the United 
States, directed to the President of the Senate.’' 

Being thus constituted the depositary of the electoral 
vote, and having custody of the same, it was perfectly nat¬ 
ural and appropriate that the President of the Senate, 
since he alone was able to produce and identify them, 
should be charged with the duty of opening the certificates. 
But with the performance of this purely ministerial duty 
his functions end. 

Still another point preliminary to the main issue demands 
attention. 

Much has been said of a joint convention, in whose pres¬ 
ence the certificates are to be opened and the vote counted. 

No provision for any such body is to be found in the 
Constitution. 

“In presence of the Senate and House of Representa¬ 
tives,” that is the constitutional phrase. The Senate ap¬ 
pears in its own proper character as the Senate, presided 
over by the Vice-President or its appropriate presiding 
officer ; the House in its character as such, presided over 
by its Speaker; and in their presence the proceedings are 


4 


had. They constitute in no sense a single parliamentary 
body, but retain throughout a separate and individual char¬ 
acter. 

By the language of the Constitution above quoted, nothing 
is demanded of either House or Senate except that it shall 
act as a witness, in whose presence all the certificates are to 
be opened; for though a count is provided for, the duty of 
performing it is not devolved either expressly or impliedly 
upon them. So that, if we are to confine our view to the 
clause in question, we may well conclude not only that the 
Constitution in this important particular is vague and un¬ 
certain, but absolutely dumb. Hot sucb, however, is a true 
conclusion, as will be seen when we consider other sections 
of that instrument which have attracted but little notice in 
this connection, but in which the counting of the electoral 
vote is provided for with definite precision. 

We have now, in our theory of constitutional action, the 
Senate and House of Kepresentatives, in each other’s pres¬ 
ence, and the President of the Senate, charged with the 
duty of opening all the certificates that have been returned 
by the electors from their respective States. We have, too, 
the command of the Constitution that ‘‘the votes shall then 
be counted,” but with no declaration by whom. 

Now, it is at this precise moment that other provisions 
of the Constitution come into play, prescribing an intelligi¬ 
ble and consistent mode of procedure. 

What are those provisions? Let us see. 

The certificates having been opened by the President of 
the Senate, who is their custodian under the Constitution, 
and the count being in order, it is provided “that the 
person having the greatest number of votes for President 
shall be the President, if such number be a majority of tbe 
whole number of the electors appointed ; and if no person 
have such majority, then, from the persons having the high¬ 
est numbers, not exceeding three on the list of those voted 
for as President, the House of Representatives shall choose 
immediately by ballot the President.” 

Here, then, for the first time we have distinct intimation 




5 


by whom'’in the intendment of the Constitution the count 
of the electoral vote is to be made. 

Being charged with-the duty of electing a President in a 
defined contingency, of course the House of Representatives 
alone can judge when that contingency shall arise. To this 
end it must of necessity examine and count the electoral 
vote. 

It must count it to ascertain its total number, that it may 
learn what a majority of that number is. 

It must count and examine it that it may know for what 
candidates respectively it has been cast. 

It must count and examine it to know by whom, if by 
any one, a majority has been received. 

Finally, if no candidate have a majority, it must count 
and examine it to ascertain ^‘hy what persons, not exceeding 
three on the list of those voted for as President, the highest 
numbers have been received.” 

And thus we perceive the reason for the indefiniteness of 
the words heretofore used, viz, “and the votes shall then 
be counted,” it being clear that they are referred for an 
operative interpretation to the subsequent clauses of the 
Constitution by which the powers of the House of Repre¬ 
sentatives in this respect are defined. 

It being an exclusive prerogative with which the House 
is clothed, its authority must be supreme, both as respects 
the modes of its procedure and its ultimate action. Hence 
follows the conclusion that its jurisdiction over the elect¬ 
oral count for President must be an entire and exclusive 
one. 

I say nothing now of the possibilities of a disagreement 
and the evils to spring thereform between two bodies so 
dissimilar in interest and character upon the theory of a 
joint count by the Senate and the House. But I do say that 
no sound construction will hold that where one branch of the 
Government has an exclusive and indivisible responsibility, 
its action is to be embarrassed by the interference of another 
branch clothed with no authority, and having no voice in 
tlie matter. 


6 


The sole duty of the Senate under the requirements of 
the Constitution is to take notice whether or not there has 
been a failure in the popular choice for Vice-President, and 
to proceed to fill that office from the two highest numbers 
on the list. 

Besting the pretension that the Senate is permitted to 
participate in the count upon the general phrase the 
votes shall then he counted,” we have a forced construction 
of the Constitution incapable of verification, whereas the 
construction for which I contend harmonizes all its provis¬ 
ions, and presents a logical and consistent system. 

Not only does my conclusion conform strictly to the Con¬ 
stitution, but I believe it to be the only one consonant with 
Republican liberty and our form of Government. 

The framers of the Government excluded the Senate from 
participation in the election of the President when there 
liad been a failure of the popular choice. And why? As¬ 
suredly because that body was recognized by them as 
being, in its very origin and structure, a creature beyond 
the control of the {)opular will, an irresponsible body iti 
fact, amenable to no process, even for attempted usurpation 
or civic crime. 

With equal prudence and discretion, as I believe, they 
have excluded the Senate, by the Constitution, from any 
participation in the count of the electoral vote for Presi¬ 
dent, though it has a certain defined function as respects 
the office of Vice-President, to which I have already re¬ 
ferred. 

In short, no reason can he suggested why the Senate 
shall be permitted to participate in the count of the elect¬ 
oral vote, which would not warrant its participation with 
tlie House of Representatives in the election of the Presi¬ 
dent, a constitutional impossibility about which there is 
no dispute as yet. The same considerations by which it 
was excluded from action in the latter instance will exclude 
it in the former. 

If it should be contended that the Senate has a right 
to join in tlie electoral count, as representing tlie several 



7 


States, I reply that the idea of State autonomy is guarded 
in a much more effective manner by the requirement of the 
Constitution that whenever the House of Representatives 
proceeds to an election of the President, the votes are to be 
taken by States, the Representatives of each State having 
hut one vote, and a majority of all the States being neces¬ 
sary to a choice. 

So, as respects the suggestion that if the House of Rep¬ 
resentatives have an exclusive jurisdiction over the electoral 
vote for President, it will be tempted to abuse that jurisdic¬ 
tion, I reply that such a suggestion presupposes a revolu¬ 
tionary proceeding, and from that possibility not even 
the joint system of Senate and House is exempt. Indeed, 
where revolution is resorted to there are no muniments in 
either branch of the Government, legislative, executive, or 
judicial, which might not be overthrown. That assuredly 
is a remote contingency, in which the popular branch of 
the Government will be likely to betray its own consti¬ 
tuency, and by fraud or treachery subvert the popular will. 

Having thus presented, though with far too little delib¬ 
eration and method, my views upon this important subject, 
I beg to say that your considerate perusal of these pages 
will afford me the highest honor ; and for the rest I leave 
them and the views they sustain to the test of that su- 
premest of all known vindicators of the truth—the Conflict 
of Ideas. 

Very respectfully, yours, 

Richard S. Spofford. 










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